NCMIC Insurance Co. v. Johnson

The opinion of the court was delivered by: Michael J. Reagan United States District Judge

ORDER FOLLOWING BENCH TRIAL REAGAN, District Judge:

A. Introduction

Plaintiff NCMIC Insurance Company ("NCMIC") issued a professional liability insurance policy to Timothy Johnson ("Johnson"), a chiropractor, that was in effect on February 23, 2002. On December 13, 2003, Rennae Bennion ("Bennion") filed suit in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois (Case # 03-L-2035), alleging that on or about February 23, 2002, Johnson "physically and sexually touched and assaulted" her "without her consent." On April 1, 2004, NCMIC filed the present action with this Court seeking a declaratory judgment that it is not obligated to defend or indemnify Johnson as to Bennion's Madison County Complaint.

This case proceeded to bench trial before the undersigned Judge on January 20, 2006. Pursuant to FEDERAL RULE OF CIVIL PROCEDURE 52, the Court now finds and concludes as follows.

B. Findings of Fact

At trial, the only evidence presented to the Court were NCMIC's Exhibits 1 through 13. Johnson did not present any exhibits, and neither party called any witnesses. Based on that portion of the evidence properly before the Court, the Court makes the following findings of fact:

1. On December 18, 2003, Bennion filed a lawsuit against Johnson in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois.

2. Count I of Bennion's Complaint*fn1 is for battery, and alleges that Johnson "physically and sexually touched and assaulted [Bennion] without her consent" and that Johnson "intended to, and caused, a harmful and offensive contact with [Bennion]."

3. Count II alleges intentional infliction of emotional distress. It also alleges that Johnson "physically and sexually touched and assaulted [Bennion] without her consent," that Johnson's acts were extreme and outrageous, and that Johnson knew that his actions were certain or substantially certain to cause Bennion to suffer severe emotional distress.

4. Bennion also has filed a motion to amend her Complaint to add Count III. Bennion's proposed Count III claims negligence against Johnson (Pl. Ex. 3). It alleges that Johnson "physically and sexually touched and assaulted [Bennion] without her consent," and that he had a duty to exercise due care and caution "to avoid sexually touching and assaulting other persons in his presence." The only allegation of negligence is that "[Johnson] touched [Bennion's] breasts, stomach, back and buttocks," which allegedly caused "personal and emotional injuries."

5. Johnson is a chiropractor.

6. The Bennion Complaint does not allege that Johnson is a chiropractor, nor that Bennion was a patient of Johnson.

7. Each Count of the Bennion Complaint (Pl. Ex.'s 2 and 3, ¶ 3 of each Count) alleges: "On or about February 23, 2002, [Bennion] was invited into [Johnson's] business office located at 303 Main Street in the City of Troy, Madison County, Illinois, wherein [Johnson] physically and sexually touched and assaulted [Bennion] without her consent."

8. The Bennion Complaint does not allege any professional malpractice.

9. The Bennion Complaint alleges that Johnson was arrested, pleaded guilty, and was convicted of battery in violation of 720 ILCS 5/12-3(a)(2) for the conduct ...

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